by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit reaffirmed that a district court must personally invite a defendant to allocute at the time of sentencing.

A jury convicted Michael Scripps of seven counts of wire fraud for fraudulently transferring millions of dollars from the bank accounts of his mother and uncle into his own account. At sentencing, the U.S. District Court for the Eastern District of Pennsylvania indicated several times that Scripps could address the court to explain his actions. For example, the judge said to Scripps’s attorney, Michael Dezsi: “I haven’t heard acknowledgement just yet — maybe we’ll get there — of [Scripps’s] own responsibility for the choices he has made.... And he can tell me about them if he wants.”

Later, the judge asked Dezsi, “Does [Scripps] want to talk to me?” Dezsi told the judge he would confer with Scripps before doing that. As the hearing continued, the judge instructed Dezsi to “speak with [Scripps] about whether he wishes to speak to me.” Finally, just before imposing sentence, the judge again asked Dezsi if Scripps wished to speak. Dezsi said to the judge: “Your Honor, having discussed it - the matter with my client, he’s opting not to address the court.... He will not be making a statement.” The judge concluded, “There’s nothing in this record from which I could fairly conclude there’s any remorse whatsoever.” The judge sentenced Scripps to the maximum prison term of 108 months.

Dezsi also represented Scripps on appeal. The judgment was affirmed. Scripps then filed a § 2255 motion alleging, inter alia, that Dezsi was ineffective for not appealing the district judge’s failure to personally address Scripps during sentencing. The district court denied the motion without conducting a hearing, and Scripps appealed.

The Third Circuit observed, “Rule 32 [of the Federal Rules of Criminal Procedure] protects a defendant’s right to allocution. Specifically, the rule requires that courts ‘address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.’” In United States v. Adams, 252 F.3d 276 (3d Cir. 2001), the court ruled that when a trial judge asks a defendant’s lawyer if the defendant wishes to exercise his right of allocution, it does not satisfy the requirement that the district court personally address the defendant. The court supported its reasoning in Adams with the Supreme Court’s ruling in Green v. United States, 365 U.S. 301 (1961), wherein the High Court instructed that courts are to “leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.”

In the instant case, the Court determined that it made no difference that the judge had personally instructed Dezsi to ask Scripps if he wanted to speak to the judge: “Our controlling law and the text of Rule 32 make clear that courts must personally address the defendant and that no substitute for such personal address will be permitted.”

But the Third Circuit could not legally conclude that Dezsi’s assistance on appeal was constitutionally deficient. Dezsi could have had a strategic reason for not raising the issue. But because the record did not conclusively show that Scripps was not entitled to relief on his motion, the district court was required to hold a hearing. United States v. McCoy, 410 F.3d 124 (3d Cir. 2005). The district court’s failure to do so was an abuse of discretion. United States v. Lilly, 536 F.3d 190 (3d Cir. 2008).

Accordingly, the Court vacated the order denying Scripps’s § 2255 motion and remanded for further proceedings consistent with the Court’s opinion. See: United States v. Scripps, 961 F.3d 626 (3d Cir. 2020).

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